Millman v. Streeter

Decision Date10 April 1941
Docket NumberNo. 1541.,1541.
Citation19 A.2d 254
PartiesMILLMAN v. STREETER et al.
CourtRhode Island Supreme Court

[Copyrighted material omitted.]

Appeal from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Suit by Myer Millman, administrator of the estate of Dr. Sheffield Smith, deceased, against Bertha E. Streeter and another, to compel the named respondent to pay and deliver to the complainant certain money and personalty claimed by the named respondent as a gift from the deceased. From a decree in favor of the complainant, the named respondent appeals.

Appeal denied and dismissed, decree affirmed, and cause remanded for further proceedings.

Francis J. O'Brien and J. Raymond Dubee, both of Providence, for complainant.

Voigt, Wright, Munroe & Clason, Ernst T. Voigt, and Nathan M. Wright, Jr., all of Providence, for respondent Bertha E. Streeter.

FLYNN, Chief Justice.

This cause is before us on the appeal of the respondent Bertha E. Streeter from a decree in equity, entered in the superior court, ordering the payment and delivery to the complainant of certain money and other personal property claimed by said respondent as a gift from complainant's intestate.

The complainant is administrator of the estate of Dr. Sheffield Smith, who died intestate in August, 1937, at the age of eighty-three years. Bertha E. Streeter will hereinafter be referred to as the respondent, the other respondent being the probate clerk who was joined merely as an appointed custodian of the money in question. The respondent, though not related to the doctor or his wife Jeannette, had been from childhood an intimate friend of both, particularly of Mrs. Smith. Doctor and Mrs. Smith died without issue.

Jeannette Smith had died before Dr. Smith, in April, 1937, leaving a will by which she gave to him a life estate in her real and personal property, together with the right to sell or dispose of the same for his comfortable support and maintenance. The remainder, if any, after his death was given over to the doctor's brother. The latter, however, died before the testatrix.

For some years before his death Dr. Smith had retired from active practice because of a serious ailment which required medical care and attention. Elizabeth L. Hogg had administered electric treatments to him and had acted as his chauffeur. Prior to the death of his wife she had also attended Mrs. Smith as a nurse and companion. She continued in the service of Dr. Smith after his wife's death. Miss Hogg refused, however, to accompany him on a proposed trip to California because, as she said, his health was in no condition to withstand the rigors of such a long trip. Apparently for that reason Dr. Smith quarreled with her and terminated her employment or activities on July 5, 1937. He then demanded and received from her the return of a key to a safe deposit box in the Industrial Trust Company, which stood jointly in the names of himself and Miss Hogg.

Doctor Smith thereupon purported to make some dispositions of his property to the respondent. His deeds to her of certain realty were involved in the suits of Whitmarsh v. Streeter, 62 R.I. 411, 6 A.2d 453, and Nelson v. Streeter, R.I., 13 A.2d 256. He purported also to make certain dispositions of money and some other personal property to the respondent, who had agreed to go with him on the trip which Miss Hogg refused to take.

Doctor Smith and the respondent started on the trip, the tickets having been purchased with some of the money allegedly given by him to the respondent. They were forced, by the doctor's health, to turn back before reaching their destination and, on his return in August, 1937, Miss Hogg was invited by him to call at his house. She did so and at that time the doctor made certain explanations of his transfers of property to the respondent and offered certain inducements to Miss Hogg to influence her to return as his nurse and chauffeur; and to right the wrong which he said he had done to her, presumably by such transfers to the respondent. According to Miss Hogg, the doctor said he still had control of certain property which he purported to have given to the respondent. There was other evidence, including testimony and conduct by the respondent at other previous hearings or trials, which had a material bearing on her testimony and claims in the instant cause.

The trial justice decided upon all the evidence that the respondent, as claimant of the property, had not established a completed gift in praesenti in any of the personal property in question. The respondent's reasons of appeal from the decree, entered in accordance with that decision, are numerous but may be summarized as raising two principal contentions, viz.: First, that the trial justice misconceived the theory and law relating to the respondent's claim, as a joint tenant, to the money in the safe deposit box; and second, that even if the cause be decided upon the basis of a gift inter vivos, the decision was against the clear weight of the documentary and other evidence, particularly as to the money.

The respondent relies chiefly on her first contention, relating particularly to the sum of $12,000 that was placed by the doctor in the box rented from the Citizens Safe Deposit Company. This box was hired and paid for by the doctor but was registered in the names of Sheffield Smith and the respondent by an agreement dated July 14, 1937, which reads as follows:

"We agree to hire and hold Safe No. 7179 in the Citizens Safe Deposit Co.'s vault, as Joint Tenants, the survivor or survivors to have exclusive right of access thereto for any purpose including right to remove contents in case of death of either, and either to have power to appoint a Deputy. Either of the tenants has the right to surrender the safe.

"We acknowledge a receipt from the Citizens Safe Deposit Company covering rent of within described safe and agree to the rules and regulations as printed thereon and to such reasonable amendments or additions thereto as may be hereafter adopted. We also acknowledge receipt of two keys.

"Signed Bertha E. Streeter

"Signed Sheffield Smith"

She now argues that the money which was thus placed in the box belonged to her because a joint tenancy therein had been created by the above agreement; and that such agreement must be accepted as conclusive evidence of the existence of such tenancy. We cannot determine from the transcript whether this argument was made to the trial justice as clearly as it is now made to us. However, if we assume that it was so made and that the trial justice overlooked or misconceived it, the principal question is whether that agreement with the Citizens Safe Deposit Company conclusively created, as between Dr. Smith and the respondent, a true joint tenancy in the contents placed in the box by the doctor.

In our opinion the agreement, by itself, did not create a true joint tenancy. The law in this state recognizes that a joint tenancy may be held by two or more persons in personal as well as real property. General Laws 1938, chapter 431. See Industrial Trust Co. v. Scanlon, 26 R.I. 228, 231, 58 A. 786, 3 Ann.Cas. 863. However, in the absence of any other controlling statute, a true joint tenancy has always been characterized by the existence of all the four unities of time, title, interest and possession.

Under this agreement, the company had no title, interest, or possession in the money which it could transfer to the tenants at the time of the execution thereof. Only the safe deposit box was then in its control to lease to them. Nor does the agreement purport to use the company as a conduit through which the contents of the box were transferred to the alleged joint tenants so as to vest in both of them the same title, interest and possession.

The agreement, as between the tenants, does not effectuate a true joint tenancy in the safe itself, which we have called the box, much less in its contents. Following their agreement in the first sentence of the first paragraph, which is merely "to hire and hold Safe No. 7179 * * *, as Joint Tenants, * * *", they expressly stipulate in the very next sentence of that paragraph: "Either of the tenants has the right to surrender the safe."

This language negatives a true joint tenancy in the box. If one tenant had the right under this agreement to surrender the box to the exclusion of the other, then certain essential characteristics of a joint tenancy, as at common law, would be negatived because in such a tenancy each would hold the whole box by the same kind of title, interest and possession. The same objection would lie if this agreement should be construed as relating not only to the holding of the box but also to the removal and use of the contents thereof. Moreover, the conduct of the tenants, during the life of the doctor, was at variance with the claim of a true joint tenancy. Thus neither the agreement by itself nor in connection with the evidence can be considered as conclusively creating or establishing a true joint tenancy, as respondent chiefly contends.

The respondent, however, has cited certain cases from other jurisdictions in support of her contention upon this point. Among these are Graham v. Barnes, 259 Mass. 534, 156 N.E. 865; New Jersey Title Guarantee & Trust Co. v. Archibald, 91 N.J. Eq. 82, 108 A. 434; Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N. E. 371; Erwin v. Felter, 283 Ill. 36, 119 N. E. 926, L.R.A.1918E, 776. It is conceded that some language is found in these cases which seems to lend assistance to her contention. However, we do not think that any of those courts intended to go so far as the respondent contends here, namely, that such an agreement, apart from statute, is in itself conclusive on the question of the creation of a joint tenancy as at common law.

We are inclined to the view that those courts referred to a joint tenancy as meaning really a holding by two or more persons of a qualified joint...

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